- The Washington Times - Wednesday, February 9, 2000

Many conservatives have so little faith in the strength of their ideas that even when faced with an obvious and nearly universally recognized bad idea, our first reaction is to surrender without firing a shot. Take a recent cover story in the conservative Weekly Standard, on a Vermont court's attempt to legalize homosexual marriages.

In its article, the magazine agrees that homosexual marriage is a terrible idea. Regrettably, it then goes on to dismiss the 1996 Defense of Marriage Act (DOMA), as "flimsy" protection against likely efforts by homosexual activists to use the Vermont ruling as leverage to force other states to recognize gay unions. Unfortunately, the same article offers no alternative to DOMA, other than a vague insinuation that things would be much better if only George W. Bush issued a stronger statement on the matter.

What conservative naysayers fail to grasp, is that DOMA already provides the tools to check the spread of homosexual marriages at Vermont's borders, ensuring that whatever damage Vermont seems poised to enact, it does not impact federal laws and cannot be forced onto the other 49 states. DOMA does two things. First, it specifically provides that no state shall be forced to recognize a same-sex "marriage" or similar relationship even if another state does. Secondly, it defines marriage for federal purposes as the union between one man and one woman.

The Vermont decision comes as no surprise to those of us who have followed this issue for the past several years. Like anti-gun and anti-tobacco activists, the homosexual lobby has become expert at shopping venues for liberal judges; it also recognizes the value of filing multiple lawsuits to improve the chances of hitting pay dirt. The obvious result of this judicial roulette game is an occasional win. If the Vermont court had ruled against the homosexual activists, it is a virtual certainty another liberal court would have used a general clause in another state's constitution to rule their way.

Now that the inevitable has in fact occurred, how should proponents of traditional marriage respond? Simple. We should stop whining and wringing our hands, and start using the tools we already have to fight homosexual marriage. I think we'd win, just as we did in 1996.

There will be two categories of challenges based on the likely legalization of same-sex relationships in Vermont. The first will be in-state challenges demanding federally funded benefits. Fortunately, DOMA addresses this scenario head-on, by explicitly defining marriage for federal purposes as only the union between one man and one woman. Thus, any benefits that are funded fully or partially by federal revenue cannot be legally granted to same-sex couples under federal law, no matter what Vermont does.

The second, and more difficult question, will involve out-of-state litigation aimed at spreading elements of the Vermont decision to other states. If the Vermont legislature follows its high court's ruling, the state will quickly become a homosexual Las Vegas, offering drive-through recognition to same-sex couples. Homosexual extremists will then go home and seize every possible opportunity to force other states to deny or grant benefits to couples "married" or recognized in Vermont. By winning a benefit here and a benefit there, homosexual litigants will try to make the notion of same-sex unions acceptable to the mainstream.

Fortunately, DOMA also addresses this predictable assault, by explicitly providing that no state shall be forced to recognize another state's homosexual "marriages" or any "relationship … treated as a marriage," which is precisely what the Vermont high court is directing e.g., grant homosexual relationships the same benefits in all respects as traditional marriage. In other words, treat such relationships as marriages. The Defense of Marriage Act, passed by an overwhelming majority of 83 percent of members of Congress, squarely addresses what the court in Vermont is trying to do establish the equivalent of a formal homosexual marriage regardless of whether it's called that or not. Under DOMA, a homosexual couple from Vermont has no claim on spousal benefits in another state, unless that other state caves in and allows them to. DOMA is still available now, today, as a defensive shield; let's use it. Since Congress cannot overturn the Vermont decision, and the Vermont Constitution is practically impossible to amend, our best course of action is to fight its spread in other states, and to make sure the decision does not extend to federally funded benefits even in Vermont. Conservatives have only recently developed an ability to go toe-to-toe with liberals in our nation's courtrooms. We must now begin doing exactly that, by effectively applying DOMA as it was intended; that is, to the situation in Vermont. Of course, it certainly wouldn't hurt if the Vermont legislature developed the backbone to refuse to enforce the court's misguided decision, but that's unlikely.

Of course, the homosexual lobby's lawyers will challenge the use of DOMA to defend against the broadening of Vermont's misguided decision. But so what? I think we'll win. Wouldn't it be nice to see a mainstream law such as the Defense of Marriage Act (signed by no less a liberal president than Bill Clinton), used as it was intended as a tool to stop an extremist agenda? Wouldn't that help brace up Republicans and conservatives? And wouldn't that be refreshing for all of us?

Robert Barr, Georgia Republican and a member of the House Judiciary Committee, authored the Defense of Marriage Act in the 104th Congress.

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